KAMALA D. HARRIS Attorney General of...

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KAMALA D. HARRIS, State Bar No. 146672 Attorney General of California MARK R. BECKINGTON, State Bar No. 126009 Supervising Deputy Attorney General PETER H. CHANG, State Bar No. 241467 Deputy Attorney General JONATHAN M. EISENBERG, State Bar No. 184162 Deputy Attorney General

300 Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 897-6505 Fax: (213) 897-5775 E-mail: [email protected]

Attorneys for Defendant Kamala D. Harris, as California Attorney General

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

FRESNO DIVISION

JEFF SILVESTER, BRANDON COMBS, THE CALGUNS FOUNDATION, INC., a non-profit organization, and THE SECOND AMENDMENT FOUNDATION, INC., a non-profit organization,

Plaintiffs,

v.

KAMALA D. HARRIS, Attorney General of California (in her official capacity),

Defendant.

1:11-cv-02137-AWI-SKO

NOTICE OF MOTION AND MOTION OF DEFENDANT KAMALA D. HARRIS FOR STAY PENDING APPEAL

Hearing Date: October 27, 2014 Hearing Time: 1:30 p.m. Judge: Hon. Anthony W. Ishii Trial Date: March 25, 2014 Action Filed: December 23, 2011 [Set for Hearing Concurrently with Motion to Amend Judgment]

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

Please take NOTICE that, at 1:30 p.m. on October 27, 2014, or as soon thereafter as the

matter may be heard, in Courtroom 2 (Senior U.S. District Judge Anthony W. Ishii, presiding) on

the Eighth Floor of the above-titled Court, located at the Robert E. Coyle Federal Courthouse,

2500 Tulare St., Fresno, CA 93721, Defendant Kamala D. Harris, Attorney General of the State

of California (“Defendant”), will and hereby does move, under Federal Rule of Civil Procedure 1

Notice of Motion and Motion for Stay (1:11-cv-02137-AWI-SKO)

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62, to stay enforcement of the final judgment entered herein on August 25, 2014 (Dkt. 106),

which judgment references the Court’s order in the nature of injunctive relief stated at pages 55

and 56 of the findings of fact and conclusions of law. (Dkt. 107.)

Defendant moves for a stay of the ordered injunctive relief pending an appeal of the final

judgment to the U.S. Court of Appeals, Ninth Circuit. All four factors considered in a stay

request militate in favor of granting the requested relief.

First, because the Court resolved truly novel questions of first impression involving Second

Amendment law, Defendant meets the requirements of showing a strong likelihood of succeeding

on the merits in the appeal.

Second, absent a stay, the State of California (the “State”) will be irreparably injured as a

matter of law. A U.S. state is irreparably harmed when duly enacted legislation, such as the

WPL, is enjoined from being enforced during an appeal, if the law is ultimately sustained.

Furthermore, BOF, part of the California Department of Justice which Defendant heads (see Cal.

Gov’t Code § 12510), will have to expend significant time and resources modifying the complex

systems for processing DROS applications to comply with the Court’s order, and these

expenditures cannot be recouped in the event of a successful appeal revealing the expenditures to

have been unnecessary.

Third, the balance of harms favors the State. While a stay will delay relief that Plaintiffs

Jeff Silvester (“Silvester”) and Brandon Combs (“Combs”) (if they pass future background

checks and do so in less than 10 days) might otherwise receive in acquiring future firearms, that

delay will also preserve the status quo until the matter is finally resolved on appeal. In the

meantime, it is difficult to predict the amount of additional time that Silvester or Combs, each of

whom already has firearms, may need to wait to take possession of an additional firearm sought

while the appeal is pending. Although any delay in the enjoyment of the constitutional right will

involve some burden if, in fact, this Court’s judgment is ultimately affirmed on appeal, as a

practical matter the burden imposed on Plaintiffs by a stay is modest in comparison to the burden

that will be imposed on the State if BOF is required to implement the Court’s remedial order

during the pendency of Defendant’s appeal. 2

Notice of Motion and Motion for Stay (1:11-cv-02137-AWI-SKO)

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Fourth, the public interest favors granting a stay. In addition to avoiding what may turn out

to be unnecessary expenditure by the State, a stay will preserve the status quo involving an

important public-safety law, which the Court has not declared facially invalid, while this complex

and novel matter is considered by the court of appeals.

The motion papers consist of this notice of motion and motion, the accompanying

supportive memorandum of points and authorities, and copies of the declarations of Stephen J.

Lindley and Marc St. Pierre submitted in connection with Defendant’s concurrent motion to

amend the judgment and resubmitted here for ease of reference.

Defendant respectfully requests that the Court grant this motion for a stay of the ordered

injunctive relief pending an appeal of the final judgment to the Ninth Circuit. Dated: September 29, 2014

Respectfully submitted,

KAMALA D. HARRIS Attorney General of California MARK R. BECKINGTON Supervising Deputy Attorney General PETER H. CHANG Deputy Attorney General

_/s/_________________________________ JONATHAN M. EISENBERG Deputy Attorney General Attorneys for Defendant Kamala D. Harris, as California Attorney General

3 Notice of Motion and Motion for Stay (1:11-cv-02137-AWI-SKO)

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KAMALA D. HARRIS, State Bar No. 146672 Attorney General of California MARK R. BECKINGTON, State Bar No. 126009 Supervising Deputy Attorney General PETER H. CHANG, State Bar No. 241467 Deputy Attorney General JONATHAN M. EISENBERG, State Bar No. 184162 Deputy Attorney General

300 Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 897-6505 Fax: (213) 897-5775 E-mail: [email protected]

Attorneys for Defendant Kamala D. Harris, Attorney General of California

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

FRESNO DIVISION

JEFF SILVESTER, BRANDON COMBS, THE CALGUNS FOUNDATION, INC., a non-profit organization, and THE SECOND AMENDMENT FOUNDATION, INC., a non-profit organization,

Plaintiffs,

v.

KAMALA D. HARRIS, Attorney General of California (in her official capacity),

Defendant.

1:11-cv-02137-AWI-SKO

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION OF DEFENDANT KAMALA D. HARRIS FOR STAY PENDING APPEAL

Hearing Date: October 27, 2014 Hearing Time: 1:30 p.m. Judge: Hon. Anthony W. Ishii Trial Date: March 25, 2014 Action Filed: December 23, 2011 [Set for Hearing Concurrently with Motion to Amend Judgment]

Defendant Kamala D. Harris, Attorney General of the State of California (“Defendant”),

submits the following memorandum of points and authorities in support of her motion, brought

under Federal Rule of Civil Procedure (“FRCP”) 62, to stay enforcement of the final judgment

entered herein on August 25, 2014 (Dkt. 106), which judgment references the Court’s order in the

nature of injunctive relief stated at pages 55 and 56 of the findings of fact and conclusions of law.

(Dkt. 107.) 1

Brief in Support of Stay Motion (1:11-cv-02137-AWI-SKO)

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BACKGROUND

As the Court knows, the present case adjudicates a Second Amendment challenge to

California’s statutory 10-day waiting period for firearm purchases (codified at California Penal

Code sections 26815 and 27540; the “WPL”), as applied to certain persons who already own

firearms or have certain permits related to handling firearms.

Under existing law, any person who does not qualify for one of the statutory exemptions to

the WPL and wishes to purchase a firearm legally in California must wait 10 days between

submitting a “Dealer Record of Sale” (“DROS”) application to California’s Bureau of Firearms

(“BOF”) for approval to purchase the firearm, and, after being so approved, actually taking

delivery of the firearm.

In an August 2014 written ruling following a March 2014 bench trial, this Court decided

that the WPL violates the Second Amendment as applied to any prospective firearm purchaser

who (1) passes California’s background check in less than 10 days and (2) (a) has a firearm

recorded in that person’s name in California’s Automated Firearms System (“AFS”) or (b) has a

valid, current Carry Concealed Weapon (“CCW”) license or (c) has both a firearm recorded in

that person’s name in AFS and a valid, current Certificate of Eligibility (“COE”). The Court

ordered that BOF must modify its DROS-application-processing system to allow for the release

of a purchased firearm to any such person, as soon as he or she passes the background check,

whether or not 10 days have transpired. The Court stayed this ruling for 180 days, as stated at

lines 17 and 18 of page 56 of the findings of fact and conclusions of law.1

Defendant is appealing this Court’s final judgment to the U.S. Court of Appeals, Ninth

Circuit. (See Notice of Appeal, Dkt. 111.) Defendant hereby requests that this Court stay the

judgment during the pendency of the appeal.

1 On September 22, 2014, Defendant filed a motion to amend the judgment to extend the time to comply with the remedial order from 180 days to 12 months at least. The present motion to stay the judgment pending appeal, set for hearing concurrently with the motion to amend the judgment, seeks to stay the judgment until the Ninth Circuit appeal is resolved, while the motion to amend the judgment seeks to extend the time to implement the remedial order if a stay is not granted or if that order is upheld on appeal. Defendant requests a stay pending appeal irrespective of the ruling on the motion to amend the judgment.

2 Brief in Support of Stay Motion (1:11-cv-02137-AWI-SKO)

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SUMMARY OF ARGUMENT

All four factors that courts consider in evaluating a stay request (per Humane Soc. of U.S. v.

Gutierrez, 558 F.3d 896, 896 (9th Cir. 2009)) weigh in favor of Defendant’s stay request here.

First, because the Court resolved truly novel questions of first impression involving Second

Amendment law, Defendant meets the requirements of showing a strong likelihood of succeeding

on the merits in the appeal.

Second, absent a stay, the State of California (the “State”) will be irreparably injured as a

matter of law. A U.S. state is irreparably harmed when duly enacted legislation, such as the

WPL, is enjoined from being enforced during an appeal, if the law is ultimately sustained.

Furthermore, BOF, part of the California Department of Justice which Defendant heads (see Cal.

Gov’t Code § 12510), will have to expend significant time and resources modifying the complex

systems for processing DROS applications to comply with the Court’s order, and these

expenditures cannot be recouped in the event of a successful appeal revealing the expenditures to

have been unnecessary.

Third, the balance of harms favors the State. While a stay will delay relief that Plaintiffs

Jeff Silvester (“Silvester”) and Brandon Combs (“Combs”)2 (if they pass future background

checks and do so in less than 10 days) might otherwise receive in acquiring future firearms, that

delay will also preserve the status quo until the matter is finally resolved on appeal. In the

meantime, it is difficult to predict the amount of additional time that Silvester or Combs, each of

whom already has firearms, may need to wait to take possession of an additional firearm sought

while the appeal is pending. Although any delay in the enjoyment of the constitutional right will

involve some burden if, in fact, this Court’s judgment is ultimately affirmed on appeal, as a

practical matter the burden imposed on Plaintiffs by a stay is modest in comparison to the burden

that will be imposed on the State if BOF is required to implement the Court’s remedial order

during the pendency of Defendant’s appeal.

2 Future references to “Plaintiffs” mean Silvester, Combs, The Calguns Foundation, Inc., and The Second Amendment Foundation, Inc.


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Fourth, the public interest favors granting a stay. In addition to avoiding what may turn out

to be unnecessary expenditure by the State, a stay will preserve the status quo involving an

important public-safety law, which the Court has not declared facially invalid, while this complex

and novel matter is considered by the court of appeals.

STANDARD FOR REQUESTS FOR STAYS

Under FRCP 62, a U.S. District Court may suspend an injunction during the pendency of an

appeal of the injunction, and may stay enforcement of a final judgment entered under FRCP

54(b). A party seeking a stay must establish a likelihood of succeeding on the merits, a likelihood

of suffering irreparable harm in the absence of relief, a favorable balance of the equities, and that

the public interest supports the stay. Humane Soc., 558 F.3d at 896. Although there must be a

minimal showing on each factor, courts must balance these factors, employing a flexible approach

that considers the facts of the particular case. Leiva-Perez v. Holder, 640 F.3d 962, 966 (9th Cir.

2011); see also Hilton v. Braunskill, 481 U.S. 770, 777 (1987). But, notably, to obtain a stay,

movants “need not demonstrate that it is more likely than not that they will win on the merits” or

that “ultimate success is probable.” Leiva-Perez, 640 F.3d at 966-67. A “substantial case on the

merits” or “serious legal questions” suffice “so long as the other factors support the stay.” Id.

(quoting Hilton, 481 U.S. at 778). In particular, federal trial courts “may properly stay their own

orders when they have ruled on an admittedly difficult legal question and when the equities of the

case suggest that the status quo should be maintained.” Wash. Metro Area Transit Comm’n. v.

Holiday Tours, Inc., 559 F.2d 841, 844-45 (D.C. Cir. 1977) (discussed in Dellums v. Smith, 577 F.

Supp. 1456, 1458 (N.D. Cal. 1984)).

ARGUMENT

All four pertinent factors in a stay-request evaluation weigh in favor of Defendant’s request

here.

I. DEFENDANT MEETS THE “LIKELIHOOD OF SUCCESS” FACTOR FOR A STAY

As shown above, a movant seeking a stay pending appeal needs to demonstrate just the

existence of substantial issues on the merits, if other factors weigh in favor of a stay. Specifically,


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“questions of first impression on which no binding precedent exists” can, on their own, satisfy

“the requirement that a movant is likely to succeed on the merits,” even where the trial court has

come to a conclusion contrary to that advocated by the party seeking a stay. Hunt v. Check

Recovery Sys., Inc., 2008 WL 2468473, at *3 (N.D. Cal. 2008), citing Pearce v. E.F. Hutton

Group, Inc., 828 F.2d 826, 829 (D.C. Cir. 1987).

As the court in Loving v. Internal Revenue Serv., 920 F. Supp. 2d 108 (D.D.C. 2013),

explained:

As the IRS [the party seeking the stay] diplomatically notes, it is placed in the uncomfortable position of “asking a district court to determine whether its decision is likely to be overturned.” Mot. at 3. The IRS is correct that the Court need not determine that it erred and will likely be reversed—an acknowledgment one would expect few courts to make; instead, so long as the other factors strongly favor a stay, such remedy is appropriate if “a serious legal question is presented.” [Citations.] Although the Court continues to believe its decision was correct, it is certainly cognizant that the issue is one of first impression and raises serious and difficult legal questions. If the other factors tip in favor of a stay, therefore, this factor will not preclude one.

Id. at 110.

As this Court is aware, the case at bar apparently is the first challenge to a firearm-

acquisition waiting-period law under the Second Amendment. The underlying issue of what sort

of waiting period a state may impose on the acquisition of firearms, and on what grounds, is of

obvious importance nationwide. Whatever decision the Court reached was going to be an

important ruling on a question of first impression. For that basic reason, this case is a prime

candidate for a stay on appeal. See Salix v. U.S. Forest Serv., 995 F. Supp. 2d 1148, 1154 (D.

Mont. 2014) (holding that lack of controlling appellate-court precedent indicates that appellant

has likelihood of success on merits, for stay purposes).

The present case has additional complications beyond dealing with novel legal issues.

When the case was past the discovery stage, the Ninth Circuit, in United States v. Chovan, 735

F.3d 1127 (9th Cir. 2013), first announced the analytical framework to be applied in Second

Amendment cases in the circuit. The scope of the injunction sought also kept changing, right up

to the closing argument. The Court was called on to evaluate dense witness testimony about

California’s computerized law-enforcement databases, evidence from history about the perceived 5

Brief in Support of Stay Motion (1:11-cv-02137-AWI-SKO)

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scope of the Second Amendment in the Founding Era of the United States, and reports of

medical-research studies about the efficacy of firearm-acquisition waiting periods in reducing

firearm violence. The specificity of the injunction that the Court issued is a testament to the

complexity of the case, and a sign that a stay of the injunction is appropriate while the appeal

proceeds.

This Court’s conclusion that Plaintiffs should prevail in this case is not inconsistent with a

determination that Defendant has substantial grounds for an appeal. In the evolving area of

Second Amendment law encompassing the present case, the Ninth Circuit could surely conclude

that a 10-day waiting period for new firearm acquisition, as to people who already have firearms,

is not an impermissible burden on Plaintiffs’ Second Amendment right to keep and bear arms.

Even if the Ninth Circuit holds that the WPL, as applied here, burdens the Second Amendment

right to some degree, the appellate court may well uphold California’s 10-day waiting

requirement, under intermediate scrutiny, as reasonably related to the State’s indisputably

important (indeed, compelling) interests in reducing firearm violence and, in particular, keeping

firearms (or additional firearms) out of the hands of people who are not entitled to possess them.

Defendant presented unrebutted testimony from high-ranking BOF employees that the 10-day

waiting period regularly leads to the denial of DROS applications that a shorter waiting period

might pass through. The Ninth Circuit also might well agree with Defendant that the record

before this Court demonstrates the benefits of “cooling off” periods for firearm acquisition to a

degree sufficient to sustain the lines drawn by the Legislature in the statutes at issues in this case.

In sum, the “likelihood of success” factor, properly understood, favors the entry of a stay

pending appeal in this novel and important case.

II. THE STATE OF CALIFORNIA WILL BE IRREPARABLY INJURED ABSENT A STAY

For a court evaluating a stay request, the irreparable harm to the movant if there is no stay

is a “bedrock requirement.” Leiva-Perez, 640 F.3d at 965. It is thus significant that “[i]t is clear

that a state suffers irreparable injury whenever an enactment of its people or representatives is

enjoined.” Coalition for Economic Equity v. Wilson, 122 F.3d 718, 719 (9th Cir. 1997). Because


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the Court has partly enjoined enforcement of the WPL, the State (represented here by Defendant)

has suffered an irreparable injury for purposes of stay analysis.

Separately and independently, a party subject to an injunction faces irreparable injury if the

injunction requires the party to expend significant time and resources to comply that the party will

not be able to recoup even if its position is ultimately vindicated on appeal. Project Vote/Voting

for America, Inc. v. Long, 275 F.R.D. 473, 474 (E.D. Va. 2011). Here, the Court granted

Defendant six months to comply with the injunction, recognizing that substantial time and effort

would be required. And as detailed in the declarations of Stephen J. Lindley and Marc St. Pierre,

submitted with Defendant’s pending motion to amend the judgment, orderly compliance with the

injunction will actually require at least twice as much time, to enable BOF to hire and to train new

employees, do extra processing of DROS applications, and change the relevant computer

systems.3 If the Ninth Circuit overturns this Court’s injunction, these expensive and disruptive

measures will prove to have been unnecessary, but there is no realistic prospect that the State will

be able to recover, from Plaintiffs or otherwise, any compensation for the efforts it was forced to

undertake. In other words, the harm will be irreparable.

Therefore, in two ways, Defendant has demonstrated the irreparable injury that will arise in

the absence of a stay.

III. THE BALANCE OF HARMS FAVORS A STAY

These concrete harms to the State from having to implement the Court’s order while it

remains under appellate review outweigh any harm that Plaintiffs may suffer from preservation of

the legal status quo pending appeal. Silvester and Combs already have firearms, and nothing

about the operation of the WPL (other than the background check, potentially) precludes them

from acquiring more during the pendency of an appeal. Under the existing WPL, Silvester and

Combs each have to wait 10 days between submitting an application to BOF to purchase a

firearm, passing a background check, and taking delivery of the firearm, for each firearm

3 Defendant resubmits copies of the two declarations with the present motion, for ease of reference.


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purchase. Given that the Court has continued to allow BOF to conduct background checks on

every prospective firearm purchaser for each proposed purchase, and the background checks take

up to 10 days each, the injunction may or may not reduce the waiting period for any particular

DROS applicant below 10 days; the length of any reduction in a particular case is unknown. Nor

would immediate implementation of the Court’s order even ensure that Plaintiffs or others could

acquire firearms without making a second trip to a firearm dealer, which second trip is perhaps

the primary practical harm identified by the Court in its decision. Unless Silvester and Combs

fall into the small fraction of “auto-approved” DROS applicants, each of them probably would

still have to take two trips to a dealer to acquire a new firearm, even if the Court’s order could be

implemented immediately. Under these circumstances, any concrete harm that Plaintiffs will

suffer from additional delay in implementing the Court’s remedial order while the matter remains

on appeal is outweighed by the harm that the State will suffer if it is forced to implement an

injunction that is ultimately not sustained on appeal.

IV. THE PUBLIC INTEREST IS BEST SERVED BY STAYING THE INJUNCTION

As the Court is aware, Defendant has justified the WPL, even as applied to people who

already have firearms, as a public-safety measure. The Legislature enacted the WPL for the

undeniably important purpose of keeping firearms out of the hands of people who might have a

propensity to misuse them. The Ninth Circuit may ultimately validate the Legislature’s choice in

that regard. While that remains a possibility, the public interest favors staying this Court’s

injunction.

Another important consideration is that the ability to grant a stay during the pendency of an

appeal grants “the district court [the] power . . . to preserve the status quo.” Natural Res. Def.

Council v. Sw. Marine Inc., 242 F.3d 1163, 1166 (9th Cir. 2001). In the context of an injunction,

the status quo is defined as the state of affairs before the court entered the injunction. See Nken v.

Holder, 556 U.S. 418, 429 (2009) (describing the status quo as “the state of affairs before the

removal order was entered”). The Court’s order here alters the status quo for a system that

processes nearly 1 million firearm-acquisition applications per year. A stay will preserve that


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process during the pendency of an appeal that might affirm the status quo, and therefore serves

the public interest.

CONCLUSION

Defendant has demonstrated the existence of, at a minimum, serious questions to be

resolved on appeal in this complex and novel case. Without a stay the State will suffer

irreparable harm, both by having one of its laws partially invalidated and because BOF will have

to incur costs and administrative disruption for which it will not be possible to recover

compensation if Defendant eventually prevails on appeal. Those clear and concrete harms

outweigh any harm that Plaintiffs may suffer by virtue of maintenance of the legal status quo

pending appeal. For similar reasons, the public interest also favors entry of a stay.

Thus, Defendant respectfully requests that the Court stay its injunction and judgment issued on

August 25, 2014, pending consideration and resolution of this case by the Ninth Circuit. Dated: September 24, 2014

Respectfully Submitted, KAMALA D. HARRIS Attorney General of California MARK R. BECKINGTON Supervising Deputy Attorney General

_/s/_________________________________ JONATHAN M. EISENBERG Deputy Attorney General Attorneys for Defendant Kamala D. Harris, Attorney General of California


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